Ashim (Migration)

[2018] AATA 2814

Ashim (Migration) [2018] AATA 2814 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manandhar Ashim

CASE NUMBER:  1725021

DIBP REFERENCE(S):  BCC2017/2984783

MEMBER:Amanda Mendes Da Costa

DATE:21 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 21 June 2018 at 12:52pm

CATCHWORDS
Migration – Skilled (Provisional (Class VC) visa – Subclass 485 (Temporary Graduate) visa – Requirement for evidence of English language test to accompany visa application – Test undertaken after date of lodgement – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212

CASES

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 August 2017. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487; however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused the visa on 26 September 2017 because the applicant did not have the required English language proficiency.

4. The applicant seeks to review the delegate’s decision.  For that purpose he provided the Tribunal with a copy of the primary decision.  

5. The applicant appeared before the Tribunal on15 June 2018 to give evidence and present arguments.  

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.485.212 which requires that the application was accompanied by evidence that:

   ·the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl.485.212 (b)).

9. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl.485.212 (b) is not met. As such the applicant must meet cl.485.212 (a).

10. The Tribunal finds that the specification in the instrument created a three year period in which any specified English language test could be undertaken the results of which could be used to satisfy cl.485.212, and that period ended with the arrival of the day on which the visa application was made: 19 August 2017 (the three year period).

11. The Tribunal notes that the applicant provided the Department with a Pearson Test of English Academic (PTE) Test Taker Score Report, Registration ID 319818764 with a test undertaken on 23 August 2017.

12. In his oral evidence, the applicant had intended to complete a specified English language test prior to lodging the visa application and had booked a test before lodging the visa application.  Unfortunately he did not complete the test prior to lodgement of the application.   He submitted that he had made an honest mistake in not completing the test earlier.

13. The Tribunal accepts that the applicant made an honest mistake in not completing a specified English language test within the specified period.  However, this does not affect the Tribunal’s finding that the applicant has not undertaken a specified language test within the specified period in which the applicant achieved the minimum specified scores.

14. Accordingly, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212 (a).

15. On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Amanda Mendes Da Costa
    Member